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Sps v Cyw

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date10 December 2019
Neutral Citation[2019] HKFC 319
Year2019
Judgement NumberFCMC6145/2004
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC6145/2004 SPS v. CYW

FCMC 6145/2004

[2019] HKFC 319

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 6145 OF 2004

_______________

BETWEEN
SPS Petitioner
And
CYW Respondent

_______________

Coram: Deputy District Judge Susan Wong in Chambers (Not Open to Public)

Date of Hearing: 15 November 2019

Date of Judgment: 10 December 2019

---------------------------

JUDGMENT

(Leave application)

---------------------------

1. This is an application made by the Petitioner for leave to apply for ancillary relief against the Respondent.

2. For convenience, I shall still call the Petitioner “wife” (W) and the Respondent “husband” (H) although the parties’ marriage had long been dissolved.

Background

3. The parties were married on 30 July 1979. W is now 63 years of age and is retired. H is 70 years of age.

4. Three children had been born out of the wedlock. The two eldest daughters were born in January 1982 and March 1983 respectively and the younger son (“the son”) was born in December 1984. All of them were already over the age of 18 at the time when the divorce proceedings were taken out on 10 June 2004.

5. In the Petition which was based on one-year separation by consent, W only prayed for the marriage to be dissolved and asked for no order as to the costs of the suit.

6. Decree Nisi was pronounced on 25 November 2004 and was made Absolute on 21 February 2005.

7. H remarried in 2016.

8. On 26 October 2018, W made this application after nearly 14 years. It is not surprising that H objects.

W’s Case

9. In 1987, the family had been allotted a public housing unit in Ma On Shan (“the Matrimonial Home”) and in 1998, through the Tenants Purchase Scheme, they bought the property under the name of H.

10. After the divorce, H left the Matrimonial Home and W continued to live there with the 3 children of the family. Save for the period between 2009 and 2012 when she moved to Tung Chung to look after her grandchild, W has always been living in the Matrimonial Home even till now.

11. W alleged that because she is ignorant about the law, she did not apply for ancillary relief throughout the divorce proceedings nor shortly after the Decree was made absolute.

12. In June 2016, H suddenly demanded W to leave the Matrimonial Home because he wanted to move back. On 6 December 2016, H and his new wife entered the Matrimonial home and threw W’s properties out of the room causing damages. H’s wife also threatened W with a hammer. During the struggle, H’s wife pushed W onto the ground causing her injuries. Police was called and H’s wife was subsequently convicted.

13. On 18 May 2018, H took out a civil proceeding at the District Court demanding W to deliver vacant possession of the Matrimonial Home.

14. Pursuant to the Order dated 7 November 2018, H’s case against W had been adjourned pending the determination of W’s leave application and the ancillary relief (if any) application from this court.

The Law

15. Section 6 of the Matrimonial Proceedings and Property Ordinance (MPPO) sets out the powers of this court to make orders for ancillary relief for a party to a marriage, on granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (my underlining).

16. Rule 68(1) of the Matrimonial Causes Rules (MCR) states that, inter alia, any application by a petitioner for ancillary relief shall be made in the petition. Rule 68(2) then goes on to state that:

“Notwithstanding anything in paragraph (1), an application for ancillary relief which should have been made in the petition or answer may be made subsequently –

(a) by leave of the court, either by notice in Form 8 or at the trial; or

(b) where the parties are agreed upon the terms of the proposed order, without leave by notice in Form 8.”

17. As W’s present claim for ancillary relief was not made in her petition, she will have to apply for leave from this court before she can proceed with her application.

Legal Principles

18. Paragraph 11.12 in Rayden and Jackson On Relationship Breakdown, Finance and Children states that:

“The MCA 1973 imposes no time limit on when an application for ancillary relief has to be made. It is common practice for such an application to be made at the same time, or shortly after, the petition has been issued. However, the circumstances in some cases might justify a long delay between the determination of the suit and the issue of the application for financial remedies, for example in Hill v Hill [2017] EWCA Civ 15, a claim was able to proceed 25 years after the parties had divorced and then cohabited. Delay may affect the outcome if the delay has caused prejudice. In Chaterjee v. Chaterjee [1976] Fam 199, Ormrod LJ has said that:

“Delay, if it really is delay in the sense of prejudicing the other party, may have an important influence on the justice of the case. So may conduct which can be described as “lulling” the other party into the belief that all claims have already been dealt with. Similarly, it may be unjust to interfere with property rights after a lapse of time during which the other party has ordered his or her affairs in a reasonable and proper manner in the belief that the financial consequences of the divorce have been settled”.

19. Also in the same judgment at lines B-D at page 208:

“In my judgment, the court ought not to refuse leave to apply in any case in which on the evidence the applicant has or appears to have reasonable prospects of obtaining the relief claimed, or, to put it in another way, has a seriously arguable case. It will not be enough merely to demonstrate that on the one third yardstick the applicant can make a case on the figures (as certain passages in the judgment of Arnold J, in the present case seem to suggest). To assess the prospects of success (as indicated by Davies L.J. in Jones v Jones [1971] 3 All E.R. 1201) all the facts referred to in section 25 of the Act of 1973, including in particular, practicability and conduct, in the sense of the way in which the parties have conducted themselves and their affairs up to the time of the application, must be considered.”

20. In YWM v SKB (FCDJ 680/2996), Her Honour Judge Chu (as she then was) said that,

“33. It is not disputed that such leave is not the applicant’s for the asking. In Marsden v Marsden 1973 2 All ER 851, it was held that a reason or explanation must be given for the omission of the ancillary relief claim from a petition.

…

35. At the outset of this hearing, I have referred Mrs. Remedios and Mr. Clough to paragraphs 16.6 and 17.5 of Rayden And Jackson On Divorce And Family Matters (18th Ed) (Rayden) and the case of Chaterjee v. Chaterjee 1976 Fam 199 in relation to the principles on which leave is granted. As set out in Rayden, there is no statutory time limit on when an application for ancillary relief has to be made. It is common practice for such an application to be made at the same time, or shortly after the petition has been issued. However, the circumstances in some cases might justify a long delay between the determination of the suit and the issue of application for ancillary relief.

36. The parties do not dispute the legal principles set out in Chaterjee v Chaterjee… .

37. The court, however, ought not to refuse leave to apply in any case in which on the evidence the applicant has or appears to have reasonable prospects of obtaining the relief claimed, or, to put it another way, has a seriously arguable case. (see Chaterjee v Chaterjee)

The Issues

21. To summarise, the main issues are as follows:

(i) whether W has given a reason or explanation for the omission of her present claim for ancillary relief in the petition;

(ii) whether there has been unjustifiable delay; and

(iii) whether W has or appears to have reasonable prospects of obtaining the relief, namely whether she has a seriously arguable case.

Whether W Has Given a Reason or Explanation for the Omission of Her Present Claim for Ancillary Relief in the Petition

22. W said that she is only educated up to primary 6 level and that she is ignorant about the law. As she did not know any lawyers, the law firm that she instructed to act for her in the divorce proceedings was the one she saw from an advertisement which was displayed on a public light bus. At no times had W been explained and/or asked about ancillary relief matters.

23. H on the other hand alleged that W was in urgent need to re-marry at the time and therefore she did not ask for ancillary relief so that the divorce matter could be dealt with in an expeditious manner.

24. As this hearing is being dealt with on affirmations, there has been no oral evidence given by the parties and their respective written evidence has not been tested by cross examination. However, I agree with Mr Yim representing W when he submitted that the fact remains that W was never re-married.

25. In any event, I find H’s evidence totally unconvincing. H said in paragraph 5 of his affirmation filed on 6 May 2019 that because he always needed to stay in Mainland China, he had therefore allowed W to live at the Matrimonial Home to look after the son.

26. If W was indeed in a hurry to get re-married as alleged by H, how could she remain at the Matrimonial Home to look...

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